Jeffrey H. Wood


The federal government has spent the last thirty years regulating activities that affect endangered species regardless of the species' impact on interstate commerce. The federal government used the Commerce Clause to justify such a wide range of activities there seemed to be no limit to the federal government power to intervene on behalf of endangered species. This scheme changed radically with the Supreme Court's decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers. The holding implied that federal regulation of isolated, intrastate ponds unconstitutional. This article outlines the framework that produced the SWANCC decision. The structure is based on the Endangered Species Act and its earlier judicial treatment. Once the foundation is laid, the article begins to consider the effects of the SWANCC decision and its treatment of the Commerce Clause. These discussions provide the basis for the proposal of an intrastate species test by the author. The test narrowly defines intrastate species and bans federal regulation based on such species.